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Define Subordination in Real Estate


Subordination is when one person's claim or right to something is ranked below another person's claim or right. It can happen either by choice or by law. Think of it like a ladder, where each step represents a different priority level. When someone's claim is "subordinated," it means they're on a lower step of the ladder compared to someone else's claim.


Imagine you own a house and have a mortgage with Bank A. You also have a property tax bill from your local government. By law, the real estate tax lien (the government's claim on your property for unpaid taxes) is automatically ranked higher in priority than the mortgage lien (Bank A's claim on your property for the mortgage). This means that if you can't pay your debts and your house is sold, the money from the sale will first go to the government to cover the taxes, and only after that will it go to Bank A to pay off the mortgage. In this case, the mortgage lien is "subordinated" to the real estate tax lien.

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A few more things you should know:

Here are some common subordination examples:

Refinancing: When a homeowner refinances their mortgage, they typically pay off the original loan with a new loan, often to take advantage of lower interest rates or to change the terms of the mortgage. In this case, the new lender may require a subordination agreement from the original lender to ensure the new loan takes priority over the old one.

Home Equity Loans or Lines of Credit: Homeowners may take out a home equity loan or line of credit (HELOC) to finance home improvements, consolidate debt, or cover other expenses. The lender providing the home equity loan or HELOC may require a subordination agreement from the first mortgage lender, ensuring that the home equity loan or line of credit takes priority after the first mortgage in case of default.

Construction Loans: When a property owner takes out a loan to finance construction or renovations, the construction loan lender may require subordination from the existing mortgage lender. This ensures that the construction loan has priority over the existing mortgage and that the funds are used for their intended purpose.

Tax Liens: Real estate tax liens, which are claims by the government for unpaid property taxes, are automatically given higher priority than mortgage liens. In this case, the mortgage lien is considered subordinated to the tax lien.

Mechanic's Liens: When a contractor or supplier performs work on a property but isn't paid, they can file a mechanic's lien against the property. Depending on the jurisdiction, these liens may take priority over existing mortgage liens, resulting in the mortgage lien being subordinated to the mechanic's lien.

Understanding these common examples of subordination can help you better guide your clients and protect their interests in various real estate transactions.

It's important to be aware of a few more aspects related to subordination:

Subordination Agreement: This is a legal document signed by the parties involved, typically when a borrower wants to refinance their mortgage or take out a second mortgage. It helps to establish the priority of the liens, ensuring the new lender's interests are protected.

Benefits of Subordination: For borrowers, subordination can help them secure additional financing, such as a home equity loan or a line of credit, by allowing the new lender to be in a higher priority position. For lenders, agreeing to subordinate their lien may enable them to maintain a good relationship with the borrower and potentially reduce the risk of default.

Risks of Subordination: For the subordinated lender, there is a higher risk of not being able to recover their money if the borrower defaults on their loan. In case of foreclosure, the higher-priority lien holders will be paid first, and there may not be enough funds left to pay the subordinated lender.

Subordination Clauses: Some mortgage contracts contain subordination clauses, which state that the mortgage automatically becomes subordinated to any future liens on the property. It's essential to review these clauses carefully, as they can impact the borrower's ability to secure additional financing and the lender's ability to recover their funds in the event of a default.

Mortgage companies are generally open to subordination agreements under certain circumstances. The likelihood of a mortgage company agreeing to subordination depends on the specific situation and the associated risks. Here are some factors that can influence the decision:

Refinancing: In cases where a homeowner wants to refinance their first mortgage, it's common for the original mortgage lender to agree to a subordination agreement with the new lender. This is because the refinanced loan replaces the original loan, and the homeowner's overall financial situation usually remains the same or improves.

Home Equity Loans or Lines of Credit: When a homeowner takes out a second mortgage or a home equity loan or line of credit, the first mortgage lender might agree to a subordination agreement if the homeowner has a good credit history, a strong financial position, and a low loan-to-value (LTV) ratio. In this scenario, the risk to the first mortgage lender is relatively low, as the homeowner is more likely to meet their financial obligations.

Construction Loans: Lenders might agree to subordinate their mortgage to a construction loan if the improvements being made to the property are expected to increase its value significantly. This could make the property more valuable as collateral and potentially reduce the risk to the first mortgage lender.

However, mortgage lenders might be less inclined to agree to subordination if they believe it will significantly increase their risk. Factors that may make a lender more hesitant to agree to subordination include:

- High loan-to-value (LTV) ratios
- Poor credit history of the borrower
- Insufficient income or financial resources of the borrower
- A large amount of additional debt being taken on

While subordination agreements are relatively common in the real estate industry, the specific circumstances and risk factors involved in each case will determine the likelihood of a mortgage company agreeing to subordinate their lien. As a real estate agent, it's important to be aware of these factors and help your clients navigate the process if subordination is necessary for their situation.
Illustration of Dumb Ox mascot.

"Wit & Whimsy with the Dumb Ox: Unlocking Knowledge with Rhyme:"

In the town of Priority Peak,
Lien holders gathered, their claims to seek.
Bank A had a mortgage, the government taxes,
But whose claim came first, causing quite the clashes?

By law, it was settled, the taxes held sway,
The government's lien would come first, hooray!
Bank A's mortgage lien would have to wait,
Subordinated by law, it accepted its fate.

So when the house sold, the debts to be paid,
The tax lien was first, a priority displayed.
Bank A, so patient, waited its turn,
For subordination's lesson, we all now can learn.

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